From Casetext: Smarter Legal Research

People v. Anderson

California Court of Appeals, Third District, Sacramento
Jul 3, 2008
C054914, C054916 (Cal. Ct. App. Jul. 3, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. FREDRICK ANDERSON, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. DAVID BUSTAMANTE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN RANGEL, Defendant and Appellant C054914, C054916 California Court of Appeal, Third District, Sacramento July 3, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. 06F02395, 05F01451, 05F01398

BUTZ, J.

During a 48-hour crime spree, defendants Fredrick Anderson, David Bustamante and Christian Rangel robbed multiple victims at three locations. Anderson was convicted of five counts of robbery (Pen. Code, § 211) and one count of robbery while acting in concert with others (§ 213, subd. (a)(1)(A)) while personally armed with a firearm (§ 12022, subd. (a)(1)). Bustamante was convicted of four counts of robbery and one count of robbery in concert while personally armed with a firearm. The jury also found that Anderson and Bustamante each had one prior strike. (§§ 211, 667, subd. (a), (b)-(i), 1170.12.)

Undesignated statutory references are to the Penal Code.

In a separate trial, Rangel was convicted of seven counts of robbery (§§ 211, 213, subd. (a)(1)(A)) with true findings that he was personally armed with or personally used a firearm (§§ 12022, subd. (a)(1), 12022.53, subd. (b)).

Rangel was a juvenile at the time of the charged offenses, but was tried separately as an adult pursuant to Welfare and Institutions Code section 707, subdivision (d)(2)(B).

Anderson received an aggregate state prison term of 26 years four months. Bustamante was sentenced to a total of 23 years four months. Rangel received a total aggregate term of 28 years.

In these consolidated appeals, defendants raise claims that include sufficiency of the evidence, instructional error, prosecutorial misconduct, and sentencing error. We shall strike one of the robbery counts for Rangel and direct minor corrections to the clerk’s minutes and abstracts of judgment for Bustamante and Rangel. Otherwise, we shall affirm all three judgments.

FACTUAL BACKGROUND

These cases arise from robbery incidents at three different locations, involving multiple victims.

A. Anderson and Bustamante’s Trial

March 16 Wu robbery

At approximately 10:00 p.m. on March 16, 2006, Ronald Wu went to use the Wells Fargo ATM located at Howe and University Avenue in Sacramento. As he stood in front of the machine, Wu heard someone approach and turned to see Bustamante, pointing a gun and demanding cash. As Wu fumbled through his wallet, Bustamante said, “Get it now. I will shoot you. I will kill you now.” His companion said, “This guy is too slow. Shoot him now. We need to go.” Bustamante then struck Wu in the back of his head. Wu finally managed to withdraw $200 from the ATM and handed it over to the robbers, along with his driver’s license. After threatening to kill Wu and his family if he called the police or canceled the ATM card, the robbers got into a car that was waiting for them in the parking lot and drove off.

All further calendar references are to the year 2006.

Six days after the robbery, Sacramento City Police Detective Sheila Bergquist interviewed Anderson in jail. After waiving his Miranda rights, Anderson stated that around 10:00 p.m. on March 16, he picked up two of his friends in his mother’s 1991 gray Acura Legend and drove them to a Wells Fargo ATM on Howe and University Avenue. He saw both friends go up to a man using the ATM, knew that some “criminal activity” had occurred, and drove away with them. Anderson identified Bustamante and Rangel from surveillance photos as the friends he had picked up.

Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

St. Patrick’s Day robbery

The night after the Wu robbery, March 17 at around 11:00 p.m., Pete Timm, Matthew Gray, Jonathan Flores, and Cory Thomas drove to a Wells Fargo ATM machine near the intersection of Howe and Fair Oaks. Timm and Gray went up to the ATM, while Flores and Thomas stayed in the car. While using the machine, Timm noticed three males walk up behind him, two of whom were later identified as Bustamante and Rangel. After Timm and Gray had both used the ATM machine, they began to walk back to Flores’s car. Before they could get in the car, Rangel pulled out a gun and pointed it at Timm’s chest, saying, “Give me your shit.” He also held the gun to the heads of Flores and Thomas, threatening to kill Thomas. All the victims handed over their wallets and cash. The robbers escaped in a gray Acura Legend with paper-covered dealer license plates.

Sacramento County Sheriff’s Deputies Matthew Burton and Duncan Brown responded to a 911 call about the robbery and interviewed the victims.

March 18 house robbery

A few hours later, at approximately 1:00 a.m., three males, later identified as Anderson, Bustamante, and Rangel, and a female arrived uninvited to a party at David Fink’s house. Bustamante grabbed Fink’s laptop computer and cords from the living room, and tried to punch Fink when Fink confronted him. Rangel pulled out a gun and pointed it at Fink and other party guests. Bustamante and Anderson grabbed two Samurai swords from a display mantle as the group left the house. Fink called the police, who arrived around 2:00 a.m. to take a report.

Apprehension of the robbers

Around 4:00 a.m. that morning (March 18), Deputy Brown stopped a gray Acura Legend with paper-covered license plates that matched the description of the car given to him by the victims of the St. Patrick’s Day robbery. Anderson was driving the car with Bustamante, Rangel, and a female as passengers. After determining that Anderson was on probation, the deputy conducted a search of the car and found a laptop computer, two Samurai swords in sheaths, and an empty wallet, identified later as some of the items stolen from victim Fink’s house a few hours earlier. The deputy also found cash in Anderson’s possession that was similar in denominations to the money Thomas reported giving to the robbers on March 17.

B. Rangel’s Trial

The witnesses from Anderson and Bustamante’s trial testified to substantially the same facts in Rangel’s trial. Rangel was identified either as one of the robbers or the gunman by the victims of each incident.

Additionally, Kathryn Hartsough, a guest at the March 18 house party, testified that she saw one of the uninvited guests grab Fink’s laptop and then pull out a gun. She yelled at the gunman and his three other accomplices to leave. The gunman replied, “I’m not afraid to hit a bitch.” Hartsough was then struck in the face, by either the gunman or his female companion, and she fell to the ground. In a separate count, the jury found Rangel guilty of robbing Hartsough.

DISCUSSION

I. Defendant Anderson: Substantial Evidence

A. March 16 Robbery

Anderson contends there was insufficient evidence that he aided and abetted the March 16 ATM robbery of Wu. Anderson points out that Wu never identified him as one of the robbers and asserts that his admission to Detective Bergquist “is insufficient to sustain the Wu conviction because there was no evidence establishing its trustworthiness, as defined by federal law.”

The federal cases that Anderson cites are inapposite as they pertain to the admissibility of a defendant’s extrajudicial statement or confession, not the sufficiency of the evidence to support a conviction. However, Anderson is not claiming that the trial court erred in admitting his statement. His argument is that the statement, even supplemented by the other evidence in the record, is not sufficient to sustain his conviction.

California’s law on the admissibility of a defendant’s extrajudicial statement or admission to prove the corpus delicti of a charged crime differs from federal law. In California, a defendant’s extrajudicial statement is inadmissible unless there is some independent proof of the crime to which the statement relates. (People v. Alvarez (2002) 27 Cal.4th 1161, 1169-1170.) The federal rule provides that the prosecution must produce evidence that the statement is trustworthy in order to admit it as proof of the crime. (See Smith v. United States (1954) 348 U.S. 147 [99 L.Ed. 192]; Opper v. United States (1954) 348 U.S. 84 [99 L.Ed. 101]; United States v. Lopez-Alvarez (9th Cir. 1992) 970 F.2d 583; Rodriguez v. United States (9th Cir. 1969) 407 F.2d 832.)

On appeal, the court reviews “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’” (People v. Snow (2003) 30 Cal.4th 43, 66.) The appellate court resolves all conflicts in the evidence and questions of credibility in favor of the verdict, and indulges in every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) “In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same.” (People v. Thomas (1992) 2 Cal.4th 489, 514.)

Here, Anderson’s admission to Detective Bergquist that he drove his “friends” Bustamante and Rangel to the bank in his mother’s Acura Legend placed him at the scene of the Wu robbery as the driver of the getaway car. The next day Anderson, along with Bustamante and Rangel, the identified perpetrators of the Wu robbery, were stopped driving a similar Acura Legend containing loot stolen from two subsequent robberies.

The jury could find from this evidence that, contrary to Anderson’s denial of criminal intent, he was in league with Bustamante and Rangel throughout the crime spree, and in fact willingly served as the getaway driver during the Wu robbery. Anderson’s claim of insufficient evidence must be rejected.

B. St. Patrick’s Day Robbery

Anderson contends that there is insufficient evidence that he participated in the robbery of the four victims at the Wells Fargo ATM on the evening of St. Patrick’s Day, because the only evidence against him was his presence in the car several hours after the robbery and the similarity of the denominations of the stolen cash to the cash found in his vehicle.

Although he was not identified by any of the victims, there is substantial evidence that Anderson participated in the robbery. The victims testified that the robbers drove away from the scene in a dark Acura Legend with paper over its license plates. Anderson was stopped driving a car that matched that exact description just hours after the robbery, along with Rangel and Bustamante, whom the victims positively identified as the robbers. Anderson’s height and build also matched the victims’ description of the third male involved in the robbery. Finally, Anderson was found in possession of currency remarkably similar in denominations to the cash Thomas had given the robbers. Thomas told police he gave the robbers four $20 bills, one $10 bill, one $5 bill, and five $1 bills. Anderson was apprehended several hours later carrying two $20 bills, one $10 bill, one $5 bill, and five $1 bills.

Based on the foregoing, we find substantial evidence to support Anderson’s convictions for the ATM robbery of March 17.

II. Defendant Anderson: Instructional Error

A. CALCRIM No. 1603

Anderson contends that the trial judge erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 1603as it pertained to his accomplice liability for the Wu robbery, because the instruction “focus[ed] on successful escape as a means of defining ‘place of temporary safety’ for purposes of defining the duration of a robbery.”

As given to the jury, CALCRIM No. 1603 stated that “[t]o be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety. [¶] A perpetrator has reached a place of temporary safety with the property if he [or she] has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.” (Italics added.)

In People v. Cooper (1991) 53 Cal.3d 1158 (Cooper), the California Supreme Court held that “[f]or purposes of determining liability as an aider and abettor, the commission of a robbery continues so long as the loot is being carried away to a place of temporary safety.” (Id. at pp. 1169-1170.) The court declined to adopt the “escape rule” for purposes of determining accomplice liability, reasoning that an instruction referring to “escape” could mislead the jury into believing that a getaway driver could be guilty as an accomplice for helping the perpetrators escape to a place of temporary safety even if the loot was not being carried away during the escape. (Id. at pp. 1167-1168.) Such a notion would “eliminate the distinction between aider and abettor liability and accessory [after the fact] liability in the context of getaway drivers in a manner both contrary to statute, and out of step with reasonable concepts of culpability . . . .” (Id. at pp. 1168-1169.)

Under the reasoning of Cooper, the “escape” language in CALCRIM No. 1603 was improper insofar as it may have led the jury to believe that a defendant could be found guilty as an accomplice by helping the perpetrators escape the scene, even if the loot was not being carried away during the escape. (Cooper, supra, 53 Cal.3d at p. 1170.)

However, an instructional error that improperly describes an element of an offense does not require reversal if the court finds it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Flood (1998) 18 Cal.4th 470, 503.)

The error here was harmless beyond a reasonable doubt because there was no evidence that the carrying away of Wu’s property did not coincide with the robbers’ escape.

The evidence at trial established that the escape and carrying away of the loot occurred at the same time. Thus, “if the jury found that [a] defendant formed the intent to facilitate or encourage commission of the robbery prior to or during the escape to a place of temporary safety, then such intent was also necessarily formed prior to . . . [reaching] a place of temporary safety.” (Cooper, supra, 53 Cal.3d at p. 1171; People v. Prieto (2003) 30 Cal.4th 226, 253 (Prieto).)

For the foregoing reasons, the wayward language in CALCRIM No. 1603 could not have contributed to the jury’s finding of accomplice liability and any error was certainly harmless.

B. Proposed Defense Instruction

Anderson’s defense counsel proposed “Special Instruction [No.] 1,” which told the jurors that if all the evidence in the case was equally susceptible of two interpretations, they must adopt the one pointing to innocence; and that they were duty-bound to acquit the defendant if an innocent explanation was reasonably consistent with all the facts and circumstances. The trial court refused the instruction, stating that its content was covered by other instructions.

Defense Special Instruction No. 1 reads: “You are instructed that if from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, it is your duty to adopt the one of innocence and find the defendant not guilty. [¶] The law presumes the defendant to be innocent and the defendant is entitled to the benefit of this presumption at all stages of this proceeding. You must acquit the defendant if, after consideration of the evidence, it is consistent with any reasonable hypothesis of his innocence. [¶] It is not your duty to look for some theory upon which to convict the defendant but on the contrary, it is your duty and the law requires you, if you can reasonably do so, to reconcile all the facts and circumstances that have been shown with the innocence of the defendant and acquit him. [¶] If the evidence relating to any or all the circumstances in this case, is, in view of all the evidence, susceptible of two reasonable interpretations, one of which would point to the defendant’s guilt and the other would admit of his innocence, then it is your duty in considering such evidence to adopt that interpretation which will admit of the defendant’s innocence and reject that which would point to his guilt.” (Italics added.)

Anderson argues that the trial court erred in denying his proposed instruction, for two reasons: (1) the giving of CALCRIM No. 224, “Circumstantial Evidence: Sufficiency of Evidence,” could have led the jury to believe those principles were applicable only to circumstantial evidence and not to direct evidence; and (2) a trial judge must provide non-CALCRIM instructions when necessary to properly instruct the jury.

We reject the first argument based on our decision in People v. Anderson (2007) 152 Cal.App.4th 919. There, as here, the defendant “contend[ed] that because [CALCRIM No. 224] is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression these principles apply only to circumstantial evidence, not direct evidence.” (Id. at p. 931.) We responded that “[d]efendant misreads the instruction. CALCRIM No. 224 does not set out basic reasonable doubt and burden of proof principles; these are described elsewhere. Although the instruction reiterates that each fact necessary for conviction must be proved beyond a reasonable doubt, the obvious purpose of the instruction is to limit the use of circumstantial evidence in establishing such proof. It cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant’s guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant’s guilt. [¶] The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence.” (152 Cal.App.4th at p. 931.)

Anderson’s second argument is equally unavailing. “A court is required to instruct the jury on the points of law applicable to the case, but no particular form is required as long as the instructions are complete and correctly state the law.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) Where proposed instructions are repetitious of others, or merely elaborate on general instructions, a trial court may refuse to give them. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 82 (Thongvilay).) A defendant is not entitled to a pinpoint jury instruction that is argumentative or merely highlights certain aspects of the jury’s task, without further illuminating legal standards at issue. (See People v. Noguera (1992) 4 Cal.4th 599, 648.)

The reasonable doubt standard and its application to all evidence, whether direct or circumstantial, was covered by CALCRIM Nos. 220, 222, and 224. As the italicized portions of defense Special Instruction No. 1 show (see fn. 6, ante), the proposed instruction improperly and unfairly skewed the standard instructions in a manner that would predispose the jury toward a defense verdict. Accordingly, the instruction was properly refused. (Thongvilay, supra, 62 Cal.App.4th at p. 82; People v. Hendricks (1988) 44 Cal.3d 635, 643.)

III. Defendant Anderson: Prosecutorial Misconduct

During her rebuttal argument, the prosecutor in Anderson’s trial stated: “And also with respect to the argument [the] defense made that maybe defendant didn’t say what [Detective Bergquist’s] saying that he said, . . . he’s implying, and he’s saying that Detective Bergquist is a liar and she got up on the stand and she told you something that [defendant Anderson] didn’t really say. [¶] She wouldn’t lie. She doesn’t lie. She’s doing her job. She’s telling you what he said to her.”

Anderson contends that these remarks constituted prejudicial misconduct because the prosecutor was vouching for the credibility of a key witness. We conclude that Anderson has forfeited this issue on appeal because he failed to object to the alleged misconduct in the trial court. (People v. Hill (1998) 17 Cal.4th 800, 820.)

In any event, there was no misconduct. Although “[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record,” or “to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial” (People v. Frye (1998) 18 Cal.4th 894, 971), nothing of the sort happened here. In response to defense counsel’s suggestion that Detective Bergquist perjured herself, the prosecutor asserted that she had no motive to lie because she was simply doing her job. The remarks fell within the realm of fair argument. (People v. Huggins (2006) 38 Cal.4th 175, 206-207; Frye, supra, 18 Cal.4th at pp. 971-972 [prosecutor is permitted to comment on witness credibility based on facts and inferences drawn from the record].)

IV. Defendant Rangel’s Appeal

Rangel contends there is insufficient evidence to support his conviction of the March 18 robbery of Hartsough because there was no evidence that Hartsough was in actual or constructive possession of the laptop computer when she was assaulted. The People agree and we accept the concession.

At trial, the prosecutor argued that Hartsough was a victim of the March 18 robbery because she was trying to resist and prevent the robbery of Fink’s laptop computer. During jury deliberations, the jury sent the following question to the court: “Is K. Hartsough a robbery victim because she attempted to regain possession of the laptop (that belonged to David Fink)?” The next morning, after conferring with counsel, the judge submitted the following response to the jury: “Yes, that is the allegation.” Within minutes of receiving this answer, the jury reached its verdict finding Rangel guilty of robbing Hartsough (count eight).

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211; People v. Nguyen (2000) 24 Cal.4th 756, 759 (Nguyen).) The victim’s possession of the property may be actual possession or constructive possession. (People v. Galoia (1994) 31 Cal.App.4th 595, 597 (Galoia).) Constructive possession depends upon a special relationship with the owner of the property, not upon the motives of a person seeking to recover possession from a thief or burglar. (Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484.) While courts have held that robbery victims with constructive possession of the property of business establishments include employees such as a gas station attendant (People v. Arline (1970) 13 Cal.App.3d 200, 202), a liquor store clerk (People v. Johnson (1974) 38 Cal.App.3d 1, 9), a nonuniformed security guard (People v. Miller (1977) 18 Cal.3d 873, 881), a restaurant worker (People v. Masters (1982) 134 Cal.App.3d 509, 519-520), and a store truck driver (People v. Jones (1996) 42 Cal.App.4th 1047, 1054), a visitor who attempts to thwart a robbery cannot be deemed in constructive possession of the owner’s property, and therefore cannot qualify as a robbery victim (Nguyen, supra, 24 Cal.4th at p. 764; Galoia, supra, 31 Cal.App.4th at p. 597).

There is no evidence in the record that Hartsough owned or had actual or constructive possession of Fink’s laptop computer or other items stolen from Fink’s house. The evidence showed only that Hartsough was acting as a Good Samaritan in attempting to stop the robbers as they fled. However pure Hartsough’s motives, “good motives alone cannot substitute for the special relationship needed to create a possessory interest in the goods.” (Galoia, supra, 31 Cal.App.4th at p. 599.)

Since there is no substantial evidence to support the robbery conviction against Hartsough, Rangel’s sentence on that count must be stricken. (Nguyen, supra,24 Cal.4th at pp. 764-765; People v. Howington (1991) 233 Cal.App.3d 1052, 1057.) Due to this disposition, Rangel’s secondary argument that the trial court erred “by its erroneous and misleading response to the jury’s question” pertaining to the Hartsough robbery count is dismissed as moot. This disposition does not affect Rangel’s aggregate sentence as the trial court stayed the three-year term imposed on count eight pursuant to section 654.

V. All Defendants: Consecutive Sentences--Cunningham and Blakely

The trial court sentenced Anderson to consecutive terms for three counts (counts one, three & five), and a consecutive term for a prior felony conviction enhancement. The court sentenced Bustamante to consecutive terms for two counts (counts three & five), and a consecutive term for a prior felony conviction enhancement. The court sentenced Rangel to consecutive terms for three counts (counts one, three & five).

All three defendants contend that the trial court’s imposition of consecutive terms violated the Sixth and Fourteenth Amendments. They rely on Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) to argue they were denied their right to a jury trial when the trial court imposed consecutive sentences. We disagree.

In Cunningham, the United States Supreme Court, relying on its decision in Blakely, stated that, “[e]xcept for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 873].) Thus, the court held that California’s statutory procedure for selecting an upper term sentence violated the defendant’s right to a jury trial because the trial judge determined the facts that “expose[d] a defendant to an elevated ‘upper term’ sentence.” (Id. at p. ___ [166 L.Ed.2d at p. 864].)

While Cunningham and Blakely apply to a trial court’s decision to impose the upper term, defendants’ claim that the court violated their Sixth Amendment by imposing consecutive sentences without appropriate jury findings has been rejected by the California Supreme Court. In People v. Black (2007) 41 Cal.4th 799 (cert. den. (Jan. 14, 2008) ___ U.S. ___ [169 L.Ed.2d 813]), our state Supreme Court held for a second time that the trial court’s imposition of consecutive sentences does not violate a defendant’s Sixth Amendment rights under Blakely and Cunningham. (Black, at p. 823.) As an intermediate appellate court, we are bound by the higher court’s ruling and have no authority to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

VI. Defendants Bustamante and Rangel: Corrections to Abstracts of Judgment

At Bustamante’s sentencing, the trial court ran the prison terms for counts three and four (targeting two separate victims of the St. Patrick’s Day ATM robbery) concurrently. The trial court also imposed on Bustamante an aggregate term of 23 years four months.

Bustamante points out two errors in the abstract of judgment. First, the abstract fails to indicate that the term for count four is concurrent, since the appropriate box on the form is not checked. Second, the abstract of judgment recites his total sentence as 23 years six months, whereas the sum of the individual terms stated therein is 23 years four months. The People concede these errors must be corrected.

At Rangel’s sentencing, the trial court stated that the aggregate term imposed was 28 years. Rangel points out, however, that the abstract erroneously recites his total sentence as 28 years four months. The People agree that the total term recited in the abstract is inaccurate and should be corrected to reflect an aggregate sentence of 28 years.

Where a discrepancy exists between the oral pronouncement of judgment and an abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We shall order corrections to the abstracts of judgment for Bustamante and Rangel accordingly.

We also agree with Bustamante that the clerk’s minutes erroneously recorded the jury’s verdict for the Fink house robbery (count seven) as including a finding that he personally used a knife in the commission of the offense. In fact, the jury found that he was personally armed with a firearm. We shall order this error corrected.

DISPOSITION

The conviction against defendant Rangel for the March 18 robbery of Hartsough (count eight) is reversed and the sentence imposed thereon is stricken.

The trial court is directed to prepare a corrected abstract of judgment for Rangel reflecting that the aggregate term is 28 years in state prison. The trial court shall forward a certified copy of this amended abstract of judgment to the Department of Corrections and Rehabilitation.

The trial court is directed to prepare a corrected abstract of judgment for defendant Bustamante reflecting that in item 1, count four runs concurrent to count seven, for a total aggregate term of 23 years four months in state prison. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

The clerk’s minutes of December 19, 2006, in Superior Court case No. 06F02395 are corrected to reflect that, as to count seven, the jury found Bustamante was armed with a firearm within the meaning of section 12022, subdivision (a)(1).

In all other aspects, each of the three judgments is affirmed.

We concur SCOTLAND, P.J., DAVIS, J.


Summaries of

People v. Anderson

California Court of Appeals, Third District, Sacramento
Jul 3, 2008
C054914, C054916 (Cal. Ct. App. Jul. 3, 2008)
Case details for

People v. Anderson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FREDRICK ANDERSON, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Jul 3, 2008

Citations

C054914, C054916 (Cal. Ct. App. Jul. 3, 2008)